Professional Documents
Culture Documents
Conflict of Laws Reviewer (Sempio Diy Book)
Conflict of Laws Reviewer (Sempio Diy Book)
persons whose interests in the property are Instances when court may refuse to exercise
affected jurisdiction over a case on the basis of forum non
The purpose of the suit is not to impose a persona conveniens
liability on anyone but it is to affect the interests of 1. The evidence and the witnesses may not be readily
all persons in a thing. available in the forum
2. The court dockets of the forum may already be
Jurisdiction in personam Jurisdiction over the res clogged so that to permit additional cases would
Binds only the parties and Binds the whole world hamper the speedy administration of justice
their successors in interest 3. The belief that the matter can be better tried and
decided in another jurisdiction, either because the
Actions quasi in rem main aspects of the case transpired there or the
The purpose is neither to impose a personal liability material witnesses have their residence there
in a thing nor to affect the interests of all persons 4. To curb the evils of “forum shopping” the non-
in a thing, but to affect the interests of particular resident plaintiff might have filed the case in the
persons in a thing. forum merely to secure procedural advantages or
An action affecting the personal status of the to annoy or harass the defendant
plaintiff is also classified as an action quasi in rem 5. The forum has no particular interest in the case
the parties not being citizens of the forum or are
Service of summons, how effected residents elsewhere, or the subject matter of the
1. In actions in personam case evolved somewhere else
(1) Personal service 6. Other courts are open and the case may be better
(2) Substituted service tried in said courts
7. The inadequacy of the local judicial machinery for
Note: Service by publication would NOT be effectuating the right sought to be enforced by the
sufficient plaintiff
8. The difficulty of ascertaining the foreign law
2. Service by publication applicable
(1) Action in rem
(2) Action quasi in rem Note: The doctrine should generally apply only if the
(3) Action involves the personal status of defendant is a corporation. For if the defendant is an
plaintiff individual, the proper forum may not be able to acquire
jurisdiction over him, thus leaving the plaintiff without
3. Extraterritorial service of summons any remedy.
(1) When the defendant does not reside and
is not found in the Philippines, and the Three instances when the forum has to apply the
action affects the personal status of the internal or domestic law (lex fori) in deciding a case
plaintiff in conflicts of law
(2) When the defendant does not reside and 1. When the law of the forum expressly so provides in
is not found in the Philippines, and the its conflicts rules
action relates to or the subject of which is, 2. When the proper foreign law has not been properly
property within the Philippines (real or pleaded and proved
personal), in which the defendant has a 3. When the case involves any of the exceptions to
claim, a lien or interest, actual or the application of the proper foreign law (i.e.
contingent exceptions to comity)
(3) When the defendant is a non-resident but
the subject of the action is property Why foreign law cannot be applied if it has not been
located in the Philippines in which the pleaded and proved
relief demanded consists in excluding the Our courts cannot take judicial notice of foreign laws
defendant from any interest therein
(4) When the property of a non-resident How a foreign law is proved under our Rules of Court
defendant has been attached in the 1. Written law
Philippines (1) An official publication thereof
While a writ of attachment may (2) A copy of the law attested by the officer
be issued by the court, said having legal custody of the record or by
writ cannot be implemented his deputy, accompanied by a certificate
until the court has acquired of any Philippine embassy, consular, or
jurisdiction over the non- foreign service officer in the foreign
resident defendant country where the record is kept, and
authenticated by the seal of his office
Extraterritorial service, how effected 2. Unwritten law
By leave of court: (1) The oral testimony of expert witnesses
1. By personal service (2) By printed and published books of reports
2. By publication, but copy of the summons and the of decisions of the country involved if
order of the court must be sent by registered mail proved to be commonly admitted in its
to the defendant’s last known address courts
3. In any other manner that the court may deem
sufficient, e.g., by registered mail Processual presumption of law
This rule means that when the proper foreign law has not
been properly proved, the court of the forum may presume
that said foreign law is the same as its local or domestic Theory of local law
law, which it can now apply Under this theory, we apply a foreign law not because it is
foreign, but because our own law by applying a similar rule
Exceptions to the applications of a foreign law requires us to do so, hence it is as if the foreign law has
1. When the application of the foreign law would run become part of our own internal or domestic law.
counter to a sound and established public policy of
the forum Theory of harmony of laws
2. When the foreign law is contrary to the almost Under this theory, identical or similar problems should be
universally conceded principles of morality (contra given identical or similar solutions thus resulting in harmony
bonos mores) of laws
3. When the foreign law involves procedural matters
EX: When the law is both procedural and Theory of justice
substantive Since the purpose of all laws, including Conflict of Laws, is
4. When the foreign law is penal in character the dispensation of justice, the proper foreign law should be
EX: A penal clause in a contract may applied in order to attain this objective
however be enforced here because such The defect of this theory, however, is that different
clause is not criminal in nature but persons may have different ideas of what is just
provides only for liquidated damages
5. When the law is purely fiscal (i.e., revenue Note: No single theory contains the whole truth; no one
producing) or administrative in nature approach is completely valid. All of the theories have
6. When the foreign law might work undeniable validity. This suggests that they are not entirely exclusive.
injustice to the citizens or residents of the forum
7. When the application of the foreign law would Chapter 4
endanger the vital interests of the State Nature and composition of conflicts rules
8. When the case involves real or personal property
located in our country
Purely internal provision of law vs. conflicts rule
Purely internal provision Conflicts rule/ A
Chapter 3 of law provision in conflict of
Theories that justify the application of the foreign law laws
Governs a domestic A provision found in our own
Theories that justify the application of the foreign law problem, i.e., one without a law which governs a factual
instead of domestic or internal law foreign element situation possessed of a
1. Theory of comity foreign element
2. Vested right theory Example: Art. 796 All Example: Art. 16 Real
3. Theory of local law persons who are not property as well as personal
4. Theory of harmony of laws expressly prohibited by law property is subject to the
5. Theory of justice may make a will law of the country where it
is situated
Theory of comity
According to this theory, no foreign law would be allowed to Two kinds of conflicts rules
operate in another state except by the comity of nations 1. One-sided rule
Indicates when Philippine law will apply
Comity Example: Article 15 of the CC Laws
The recognition which one state allows within its relating to family rights and duties, or to
territory, to the legislative, executive, or judicial acts of the status, condition, and legal capacity of
another nation persons, are binding upon citizens of the
Philippines even though living abroad
Two principles upon which the theory of comity 2. All-sided or multilateral rule
rests Indicates whether to apply the local law or
1. The comity based on reciprocity the proper foreign law
2. The comity based on the persuasiveness of a Example: Art. 16 Real property as well
foreign judgment as personal property is subject to the law
Our Civil Procedure still follows the of the country where it is situated
principle of reciprocity because in
Sec. 48, Rule 39, a foreign final Parts of every conflicts rule
judgment or order “is presumptive 1. The factual situation – the set of facts or
evidence of a right as between the situation presenting a conflicts problem because
parties and their successors in there is a foreign element involved
interest 2. The point of contact or connecting factor –
The law of the country with which the factual
The vested-rights theory situation is most intimately connected
Under this theory, our courts enforce not the foreign law or
foreign judgment but the right or rights that have been Note: The first part raises while the second part
vested under such law or judgment. answers a legal question
Rights once acquired should be enforced regardless
of where the suit for its enforcement was filed.
2. Citizens by naturalization
Two kinds of capacity
Those who were formerly aliens but by
1. Juridical capacity
judicial, legislative, or administrative
Passive capacity
process, have become Filipino citizens
The fitness to be the subject of legal
relations
Jus soli v. jus sanguinis
2. Capacity to act
Jus soli Jus sanguinis
Active capacity
The power to do acts with legal effects A person is a citizen of the It is citizenship by blood
country where he was born
Characteristics of status or of the country of his birth This is the rule that we
1. It is conferred principally by the State, not by the follow in the Philippines
individual
2. It is a matter of public interest or social interest Note: Each country or state has the sole power and
3. Being a concept of social order, it cannot easily be authority to determine under its internal or municipal law
terminated at the mere will or desire of the parties who are its citizens or nationals
concerned
4. It is generally supposed to have a universal Dual allegiance under Sec. 5, Article IV of the
character Constitution
The provision in the Constitution (dual allegiance of citizens
is inimical to national interest and shall be dealt with by
law) is concerned not with dual citizenship per se but with
naturalized citizens of the Philippines who still maintain their
allegiance to the countries of their origin.
Effective nationality theory necessarily in court but even before an agency like
Within a third state, a person having more than one the Immigration Commission
nationality shall be treated as if he had only one. Without
prejudice to the application of its law in personal matters Note: An alien woman married to an alien husband
and of any conventions in force, a third state shall apply the who (the husband) is subsequently naturalized also
nationalities which any such person possesses, recognize follows the Philippine citizenship of her husband,
exclusively in its territory either the nationality of the provided she does not suffer from any of the
country in which he is habitually and principally a resident, disqualifications under Sec. 4 of the same Revised
or the nationality of the country with which in the Naturalization Law. This is a case of derivative
circumstances he appears to be in fact mostly connected naturalization (similar to the minor children of a
The law of the country of which the deceased was naturalized Filipino citizen)
both a citizen and a domiciliary at the time of her
death is considered more effectively connected to Naturalization
her than her other national law. The process of conferring on an alien the citizenship of
another country by any of the means provided by law.
Citizens of the Philippines under the 1987
Constitution Modes of acquiring Philippine citizenship by
1. Those who are citizens of the Philippines at the naturalization
time of the adoption of this Constitution 1. Judicial process
2. Those whose fathers or mothers are citizens of the Com. Act No. 475 as amended by RA 530
Philippines 2. Legislative process
3. Those born before January 17, 1973, of Filipino When Philippine citizenship is conferred by
mothers, who elect Philippine citizenship upon a special act of Congress on deserving
reaching the age of majority and aliens
4. Those who are naturalized in accordance with law 3. Administrative process
RA 9139 or the Administrative
Citizenship of a Filipino woman who marries a Naturalization Law of 2000
foreigner Under this law, a Special Committee on
Citizens of the Philippines who marry aliens shall retain their Naturalization is created, with the power
citizenship unless by their act or omission they are deemed, to approve, deny, or reject applications for
under the law, to have renounced their Philippine citizenship naturalization filed with said Committee
(Article 4, Sec. 4, 1987 Constitution)
Derivative naturalization
Citizenship of an alien woman who marries a Filipino Philippine citizenship conferred on:
husband 1. The wife of a naturalized husband
Under Sec. 15 of the Revised Naturalization Law (Com. Act 2. The minor children of a naturalized father
No. 475), an alien woman marrying a Filipino, native-born 3. The alien wife of a natural born or naturalized
or naturalized, becomes ipso facto a Filipino, provided she is citizen, in the latter case, the marriage having
not disqualified to be a citizen of the Philippines under Sec. taken place after the husband’s naturalization
4 of the same law.
It is enough that an alien wife proves that she is
not disqualified to be a Filipino citizen not
Naturalization
Judicial naturalization under Com. Act. 475, Administrative naturalization under RA 9139 or
as amended the Administrative Naturalization Law of 2000
Qualifications 1. The petitioner must not e less than 21 years 1. The applicant must be born in the Philippines
of age on the date of the hearing of the and residing therein since birth
petition 2. The applicant must not be less than 18 years of
2. He must have, as a rule, resided in the age, at the time of filing of his/her petition
Philippines for a continuous period of not less 3. The applicant must be of good moral character
than 10 years and believes in the underlying principles of the
3. He must be of good moral character, and Constitution and must have conducted
believe in the principles underlying the himself/herself in a proper and irreproachable
Philippine Constitution, and must have manner during his/her entire period of
conducted himself in a proper and residence in the Philippines in relation with the
irreproachable manner during the entire duly constituted government as well as with the
period of his residence in the Philippines in community in which he/she is living
his relation with the constituted government 4. The applicant must have received his/her
as well as with the community in which he is primary and secondary education in any public
living school or private education institution duly
4. He must own real estate in the Philippines recognized by the DECS, where Philippine
worth not less than 5,000, Philippine history, government, and civics are taught and
currency, or must have some lucrative trade, prescribed as part of the school curriculum and
profession, or occupation where enrollment is not limited to any race or
5. He must be able to speak and write English or nationality: Provided, that should he/she have
Spanish and any one of the principal minor children of school age, he/she must have
languages and enrolled them in similar schools.
6. He must have enrolled his minor children of 5. The applicant must have a known trade,
school in any of the public or private schools business, profession, or lawful occupation, from
recognized by the Bureau of Private Schools which he/she derives income sufficient for
where Philippine history, government, and his/her support and if he/she is married and/or
civics are taught or prescribed as part of the has dependents, also that of his/her family:
school curriculum during the entire period of Provided, however, that this shall not apply to
the residence required of him, prior to the applicants who are college degree holders but
hearing of his petition for naturalization as are unable to practice their profession because
citizen they are disqualified to do so by reason of their
citizenship
6. The applicant must be able to read, write, and
speak Filipino or any of the dialects of the
Philippines, and
7. The applicant must have mingled with the
Filipinos and evinced a sincere desire to learn
and embrace the customs, traditions, and ideals
of the Filipino people
Disqualifications 1. Those opposed to organized government or affiliated with any association of group of person who
uphold and teach doctrines opposing all organized governments
2. Those defending or teaching the necessity of or propriety of violence, personal assault or
assassination for the success or predominance of their ideas
3. Polygamists or believers in the practice of polygamy
4. Those convicted of crimes involving moral turpitude
5. Those suffering from mental alienation or incurable contagious disease
6. Those who, during the period of their residence in the Philippines, have not mingled socially with
Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions, and
ideals of the Filipinos
7. Citizens or subjects of nations with whom the Philippines is at war
8. Citizens or subjects of a foreign country whose laws do not grant Filipinos the right to be naturalized
citizens or subjects thereof
4. Apply the foreign court theory of his domicile) by a court of competent jurisdiction
We would simply do what the foreign is considered valid for all purposes
court would do if confronted with the
same case Absence, defined
Advantage of this theory is that regardless A special legal status pertaining to a person who has
of the forum, the applicable law will be the disappeared from his domicile, his whereabouts being
same unknown, without leaving an agent to administer his
Can also result in international ping pong property or even if he had left an agent, the power
conferred by the absentee on the agent has expired
Double renvoi One status of being absent is determined in
This occurs when the local court, in adopting the foreign accordance with his personal law
court theory, discovers that the foreign court accepts the Our own courts also have jurisdiction to declare an
“renvoi.” But since the foreign law remits the case to alien domiciliary in the Philippines as absent
Philippine law, being the law of the deceased’s domicile, the
foreign court may discover that Philippine law does not Judicial declaration of absence under Philippine law
accept the remission (as it applies the national law of the After the lapse of two years without any news about the
deceased) so the foreign court, sitting as a Philippine court, absentee or since the receipt of the last news, and five
would still apply its own internal law. This is then what our years if the absentee has left an administrator of his
court will apply. property, his absence may be declared
his personal law to govern the courts to decide EX: A foreign marriage of Filipinos in a foreign country will
his status wherever he goes questions or controversies still be void in the Philippines if:
concerning one’s status 1. Either or both parties did not have legal capacity to
get married (Art. 35 (1))
Note: Thus, our courts can decide cases involving the 2. The marriage is immoral for being bigamous or
status and capacity of foreigners brought before them, but polygamous (Art. 35 (4))
in doing so, our courts will apply the personal law of the 3. Consent of one party is lacking, because of mistake
foreigner, whether it be his national law or the law of his as to the identity of the other (Art. 35 (5))
domicile, depending on what theory the country of his 4. One of the parties was psychologically
citizenship follows. incapacitated at the time of the marriage to comply
Example: Even if the personal law of the foreigner with the essential marital obligations (Art. 36)
allows divorce, he cannot apply for divorce from his 5. The marriage is incestuous (Art. 37)
spouse before a Philippine court because we do not 6. The marriage is void by reason of public policy
recognize divorce and our courts have no (Art. 38)
jurisdiction to grant divorces. However, a foreigner
who applies for legal separation in our country on a Note: Consular marriages of Filipinos abroad are valid (Art.
ground available under his national law but not 10, Family Code)
under our law, may obtain a favorable judgment
from our courts, because it is his national law on Conflicts rules on marriages between foreigners
legal separation that our courts will apply, but solemnized abroad
subject to our procedural law. 1. We still apply the rule of lex loci celebrationis, but
not the exceptions in the first par. of Art. 26 of the
Chapter 12 Family Code which apply only to Filipinos
Conflicts rules on marriage But universally considered incestuous
marriages and marriages that are highly
immoral are excepted
Philippine internal law on the formal validity of 2. Proxy marriages – Not allowed under Philippine
marriages or the validity of marriage as a contract internal law
1. Essential requisites Rule in the US – if permitted by the law of
(1) Legal capacity of the contracting parties the place where the proxy participates in
who must be male and female the marriage ceremony, proxy marriages
(2) Consent freely given in the presence of a are entitled to recognition insofar as the
solemnizing officer formal validity of the marriage is
2. Formal requisites concerned
(1) Authority of the solemnizing officer 3. Marriages on board a vessel on the high seas –
(2) A valid marriage license Since the country whose flag the ship is flying has
(3) A marriage ceremony takes place with the jurisdiction over the ship, the rule is that
appearance of the contracting parties compliance with the law of the said country is
before the solemnizing officer and their required for the marriage to be valid
personal declaration that they take each 4. If the parties or at least the husband is a Muslim –
other as husband and wife in the presence it is believed that we would recognize up to four
of not less than two witnesses of legal age marriages of the same husband (Philippine Muslim
Code on Personal Laws)
Note: The above formal requisites apply to foreigners who
get married in the Philippines. If one or both of the parties Mixed Marriages
are foreigners, the foreigner must submit a certificate of
Marriage between a If the marriage is valid
legal capacity to contract marriage issued by the diplomatic
Filipino and foreigner under the law of one of the
or consular officials of his/her country in the Philippines
ABROAD spouses while void under
before he/she can be issued a marriage license. Stateless
the law of the other, we
persons or refugees need only to submit an affidavit stating
should uphold the validity of
the circumstances showing such capacity to contract
the marriage, unless the
marriage
marriage is universally
incestuous or highly immoral
Common law marriages of foreigners
(the same rule as to
As to common law marriages of foreigners who come to the
foreigners who get married
Philippines as husband and wife, it would seem that we
abroad)
should consider the marriage valid if valid under their
Marriage between a The national law of the
national law or the law of the place where the relationship
Filipino and a foreigner in Filipino – Philippine law
began. But the marriage must not be contra bonos mores or
the PHILIPPINES should be followed –
universally considered incestuous
otherwise our public policy
would be violated
Foreign marriages of Filipinos
GR: Under Art. 26 of the Family Code, all marriages outside
Two aspects of marriage as a status
the Philippines in accordance with the laws in force in the
1. Aspect of personal rights and obligations of the
country where they were solemnized and valid there as
spouses
such, shall also be valid in this country, except those
Purely personal and are not ordinarily
prohibited under Articles 35(1), (4), (5), and (6), 36, 37,
interfered with by the courts
and 38.
In other words, we follow the rule of lex loci
celebrationis
2. Aspect of their property relations Conflicts rules on the property relations of husband
The law lays down rules and judicial and wife
sanctions as they may affect public GR: Property relations of the spouses are governed by
interest Philippine law, regardless of the place of the celebration of
marriage and their residence (nationality theory)
Law governing personal relations of spouses in If one spouse is a Filipino (wife or husband) and
Conflict of Laws the other is an alien, Philippine law would still
1. Countries that follow the nationality theory (e.g. govern
Philippines) – apply the spouses’ national law in
determining their personal relations with each EX:
other 1. If both spouses are aliens – general rule in Conflict
2. Countries that follow the domiciliary theory – the of Laws will apply
personal relations of the spouses are governed by 2. With respect to extrinsic validity of contracts
the law of their domicile affecting real property – the lex situs will govern
the formalities to be observed for the contract’s
Spouses of different nationalities: law governing their validity
personal relations
GR: The personal relations of the spouses are governed by Doctrine of immutability of matrimonial (property)
the national law of the husband regime of the spouses
Regardless of the change of nationality by the husband or
Alien woman who Ipso facto becomes a Filipino the wife or both, the original property regime that prevailed
marries a Filipino citizen if she does not suffer at the start of their marriage prevails
husband under any disqualification
for naturalization as a Immutability of the property regime v. immutability
Filipino citizen of the law governing the property regime
Immutability of the Immutability of the law
Personal relations: property regime governing the property
national law of the husband regime
shall govern (GR) A subsequent change of The law that creates and
A Filipina who marries an Constitution provides that nationality by the husband governs the property regime
alien husband she “shall retain her or wife or both does NOT may change
Philippine citizenship, unless change the original property
by her act or omission, she regime
is deemed, under our law, to
have renounced her Annulment v. Declaration of nullity of marriage
citizenship” Annulment Declaration of nullity
Remedy if the marriage is Remedy if the marriage is
Personal relations: Art. 80 voidable or annullable (valid void ab initio
of the Family Code provides until annulled)
that the national law of the
wife or Philippine law would Voidable v. void marriage – legal effects
govern the spouses’ Voidable marriage Void marriage
personal relations (rule was It can be convalidated either It cannot be convalidated
intended to protect the by free cohabitation or
Filipino wife) prescription
The same property regime The only property
Conflict rules on the law governing personal relations as in a valid marriage is relationship between the
of spouses who change nationalities established between the parties is a co-ownership
General Rules spouses
1. If the spouses have the same nationality but they The children are legitimate if The children are illegitimate,
acquire a new nationality by their common act – conceived before the decree except children of void
their new national law will govern their personal of annulment marriages under Art. 36 and
relations 53 of FC
2. If the husband alone changes his nationality after
the marriage – the law of the last common Art. 36 – children born
nationality of the spouses would govern under marriage that is void
3. If the spouses retain their different nationalities on the ground of psy.
after the marriage – National law of both spouses Incapacity
should govern
RE: 3 Better solution: apply the national Art. 53 – children born of
law of the husband at the time of the the first marriage of parties
marriage before said first marriage
EXCEPTIONS had been annulled or
1. If the national law of the husband violates public declared void, and those
policy of the forum who marry a second time
2. The national law of the wife happens to be the law without delivering the
of the forum presumptive legitime of the
children of their first
marriage
The marriage cannot be The marriage may be (3) Although the petitioner was a national of
attacked collaterally attacked directly or another country, he or she had his or her
collaterally residence in the place where the divorce
The marriage can no longer The marriage can still be was obtained
be impugned after the death impugned even after the 2. In the US, a state has a duty to recognize a divorce
of the spouses death of the spouses obtained in a sister state if the spouses were
domiciled in the latter state
Conflicts rules on annulment and declaration of nullity 3. A divorce obtained in a foreign country would be
of marriage recognized under the same circumstances that a
1. In Conflict of Laws, the grounds for annulment of divorce obtained from a sister state is given
marriage and for declaration of nullity of marriage recognition
are the grounds provided for by the law alleged to 4. in the Philippines, if both spouses are aliens, we
have been violated lex loci celebrationis or the recognize a decree of divorce obtained by them
law of the place where the marriage was abroad if valid under their national law
celebrated 5. If one of the spouses is a Filipino and the other an
Reason: Considering that it is the lex loci alien, we also recognize the divorce obtained by
celebrationis that is usually applied to the alien spouse abroad
determine whether a marriage is valid or
not, it is the same law that also Legal separation v. divorce
determines whether a marriage is voidable Legal separation Divorce
or void Relative divorce, only a Absolute divorce, dissolves
2. As for declaration of nullity of marriage between separation from bed and the marriage and the parties
two Filipinos abroad, the grounds are the board but the parties remain can marry again
exceptions to the lex loci celebrationis in Article 26 married
of the Family Code:
(1) Either or both parties did not have legal Legal separation v. annulment of marriage
capacity to get married (Art. 35 (1)) Legal separation Annulment
(2) The marriage is immoral for being Marriage is not defective Marriage is defective
bigamous or polygamous (Art. 35 (4)) Grounds arise after the Grounds must exist at the
(3) Consent of one party is lacking, because marriage time of or before the
of mistake as to the identity of the other celebration of the marriage
(Art. 35 (5)) Parties are still married to Marriage is set aside
(4) One of the parties was psychologically each other
incapacitated at the time of the marriage Grounds are those given by Grounds are those given by
to comply with the essential marital the national law or the the lex loci celebrationis
obligations (Art. 36) domiciliary law – question is subject to certain exceptions
(5) The marriage is incestuous (Art. 37) one of status – questions the very
(6) The marriage is void by reason of public existence of status
policy (Art. 38)
3. As to foreigners who get married abroad – the Conflict rules on legal separation
exceptions to the lex loci celebrationis would be the 1. If the parties are of the same nationality – grounds
same as those in marriages as a contract: for legal separation are those given by their
(1) Marriages that are highly immoral personal law (national law or domiciliary law)
(2) Universally incestuous marriages 2. If the parties are of different nationalities –
4. Consular marriages – either the national law or the grounds for legal separation are those under both
law of the domicile of the parties applies the personal law of the husband and wife
Courts that have jurisdiction over cases for Courts that may grant legal separation
annulment or declaration of nullity of marriage 1. Jurisdiction in the case of aliens is not assumed by
1. In the Philippines – since we follow the nationality the forum unless the national law of the parties is
theory, our courts have jurisdiction willing to recognize its jurisdiction
Citizens and domiciliaries can file in the 2. In the Philippines, foreigners may ask for legal
Philippines, even if the defendant is a non- separation here, even if they did not get married in
resident this country. What is important is that the court
2. In other countries – it is usually the courts of the has jurisdiction over both parties
parties’ domicile who have jurisdiction over such 3. Most countries assume jurisdiction over case for
cases since that is the place which has the greatest legal separation on the basis of the domicile of one
interest in the domestic relations of the spouses of the parties or the matrimonial domicile
Rules on the validity of foreign divorces by foreigners Note: It is NOT necessary that the cause for legal
abroad separation take place in the country for our courts to
1. Hague Convention states that a foreign divorce will have jurisdiction over the case.
be recognized in the contracting states if, at the
date of the filing of the proceedings: Grounds for legal separation under Philippine internal
(1) The petitioner or respondent had his or law (Article 55, FC)
her habitual residence in the state where 1. Repeated physical violence or grossly abusive
the divorce was obtained conduct against the petitioner, a common child, or
(2) If both spouses were nationals of said a child of the petitioner
state
2. Physical violence or moral pressure to compel the Law governing the rights and duties between parent
petitioner to change religious or political affiliation and child
3. Attempt to corrupt or induce the petitioner, a 1. If the child is legitimate – either the common
common child, or a child of the petitioner, to personal law of the parents or the personal law of
engage in prostitution, or connivance in such the father if the parents are of different
corruption or inducement nationalities governs
4. Final judgment sentencing the respondent to 2. If the child is illegitimate – The personal law of the
imprisonment of more than 6 years, even if mother is decisive, UNLESS the child is
pardoned subsequently recognized by the father, in which
5. Drug addiction or habitual alcoholism of the case the rules on legitimate children will be applied
respondent
6. Contracting by the respondent of a subsequent Doctrine of immutability of status
bigamous marriage, whether in the Philippines or The status of a child (whether legitimate or illegitimate) is
abroad not affected by a subsequent change of nationality of the
7. Lesbianism or homosexuality of the respondent parents
8. Sexual infidelity or perversion But the rights an duties of parent and child would
9. Attempt by the respondent against the life of the after the parents’ change of nationality, be
petitioner governed by the new national law of the parents
10. Abandonment of petitioner by respondent without
justifiable cause for more than one year Legitimation, defined
A process whereby children who in fact were not born in
Defenses to legal separation under Philippine internal lawful wedlock and should therefore be ordinarily considered
law (Article 56, FC) illegitimate children are by fiction of law and upon
1. Condonation of the offense or the act complained compliance with certain legal requirements, regarded by law
of as “legitimate,” it being supposed that they were born after
2. Consent of the aggrieved party to the commission their parents had already been validly married.
of the act or offense complained of
3. Connivance between the parties in the commission Conflicts rules on legitimation of children
of the offense or act constituting the ground for 1. The requisites of legitimation are generally
legal separation considered those prescribed by the national law of
4. Where both parties have given ground for legal the parents, and if the latter have different national
separation laws, the national law of the father
5. Collusion between the parties to obtain legal 2. In countries following the domiciliary theory, law of
separation the domicile of the parents, or in proper cases, the
6. Prescription law of the domicile of the father should govern
Note: The prescriptive period for filing of an action for legal Philippine internal law on legitimation of children
separation in the Philippines is 5 years from the time of the (Articles 177-182, FC)
occurrence of the case (Art. 57, FC) Requisites for legitimated children
1. The child was conceived AND born outside lawful
Chapter 13 wedlock
Status of Children 2. The parents at the time of the child’s conception,
were not disqualified by any impediment to marry
each other
Conflict rules in determining legitimacy of children
1. If the parents are of the same nationality – their
Note: Legitimation creates a permanent (immutable) status
common personal law (national law or law of
of the child
domicile) will be applied
2. If the parents are of different nationalities –
Adoption
personal law of the father governs
An act, which establishes a relationship of paternity and
filiation and in so doing, endows the child with legitimate
Legitimate and illegitimate children under Philippine
status
internal law
1. Legitimate children – children conceived or born
Law which determines whether the relationship of
during the marriage of the parents
adoption has been created or not
2. Illegitimate children – children conceived and born
1. The child’s personal law
outside a valid marriage
2. If the child does not reside in the country of his
EX: Children born of void marriages under
citizenship – the personal law of the adopter will
Article 36 (psychological incapacity) and
govern, or the personal law of the adopter and that
Article 53 (those born of the first marriage
of the child will be applied concurrently
of parties before said first marriage had
been annulled or declared void, and who
Law which determines the legal effects of adoption
marry a second time without delivering
The legal effects of adoption are determined by the same
the presumptive legitime of the children of
law that created the relationship of adoption
their first marriage are considered
LEGITIMATE CHILDREN
Adoption by aliens in the Philippines Does adoption confer on the adopted child the
Under RA 8552 or the Domestic Adoption Act of 1998, aliens citizenship of the adopter?
(who are not even former Filipino citizens) can adopt in our No. Adoption does not confer on the adopted child the
country, provided: citizenship of the adopter. Adoption is a matter political and
1. The have the same qualifications as those required not civil in nature, and the ways in which it should be
of Filipino citizens conferred are outside the ambit of the Civil Code.
2. Their countries have diplomatic relations with our
country Chapter 14
3. They have been living in the Philippines for at least Wills, succession, and administration of the estate of
3 years prior to the filing of the petition for deceased persons
adoption, and maintain such residence until the
adoption decree is entered
Two theories or systems in determining the proper
4. The have been certified by their diplomatic or
law for the transmissions of successional rights
consular offices or by any appropriate government
1. Unitary or single system – only one law
agency that they have the legal capacity to adopt
determines transmission of real as well as personal
in their own countries and
properties
5. Their government allows the adopted child to enter
2. Split or scission system – Succession to real
their own country as their adopted child
property is governed by the lex situs, while
succession to movable or personal property is
Special aliens who can adopt under RA 8552
governed by the law of the domicile of the
1. A former Filipino citizen who seeks to adopt a
deceased at the time of his death
relative within the 4th degree of consanguinity or
affinity
Note: In the Philippines, we follow the unitary or single
2. One who seeks to adopt the legitimate son or
system, in that Article 16 of the NCC applies the
daughter of his or her Filipino spouse
national law of the deceased, whatever may be the
3. One who is married to a Filipino citizen and seeks
nature of the property and regardless of the country
to adopt jointly with his or her spouse a relative
where the property is found
within the 4th degree of consanguinity or affinity of
the Filipino spouse
Extrinsic v. intrinsic validity of wills
These aliens need not comply with the residency in the
Extrinsic validity Intrinsic validity
Philippines and they also need not submit a certification that
they have the capacity to adopt from the diplomatic or Forms and solemnities of Substance of wills
consular office of their country in the Philippines or any wills
other government agency Deals with the forms and Concerns itself with:
solemnities in the making of 1. Order of succession
Note: RA 8552 still requires that the (alien) husband and wills which include: 2. Amount of
wife must jointly adopt. However in cases where the 1. Age and successional rights,
spouses are legally separated, the husband or the wife can testamentary and other matters
adopt alone, and the consent of the other spouse to an capacity of the of substance
adoption filed by one spouse is not necessary testator
2. Form of the will
Nature of adoption in Philippine law (notarial or
1. Adoption proceedings are always judicial an din holographic) etc
rem, i.e., publication is required
2. A mere agreement of adoption between the Conflicts rules in the Philippines on extrinsic validity
adopters and the parents of the child is not a valid of wills
adoption, nor the fact that the child had been 1. If a Filipino makes a will abroad - he may comply
adopted de facto (ampon) by the alleged adopting with the formalities of Philippine law (lex nationalii)
parents or the lex loci celebrationis (the law of the place
3. Neither is mere registration of the child in the civil where he was at the time of the execution of the
registry as the child of the adopter a valid will) – Art. 815, NCC
adoption. This even amounts to the crime of 2. If an alien makes a will abroad - he may comply
simulation of birth with the formalities of his lex nationalii (law of the
4. The capacity and right of the adopter to file a country of which he is a citizen, the lex domicilii
petition for adoption are governed by the law in (law of his domicile0, or the lex loci celebrationis
force at the time the petition is filed, and cannot be 3. If an alien makes a will in the Philippines – he may
impaired by a new law disqualifying him or her for comply with the formalities of his own country (lex
adoption nationalii) or of Philippine law (lex loci
celebrationis)
Recognition of a foreign decree of adoption 4. Holographic wills – must be entirely written, dated,
While there is no provision of law nor jurisprudence and signed by the hand of the testator. It is subject
expressly requiring the Philippines to recognize a foreign to no other form and may be made in or out of the
decree of adoption, it is believed that under Sec. 48 of Rule Philippines and need not be witnessed (Art. 810,
39 of the Rules on Civil Procedure, we can recognize such NCC)
foreign decree of adoption provided the foreign court had
jurisdiction to render said decree, and that there is no want Conflicts rules on joint wills
of notice, collusion, extrinsic fraud, or clear mistake of law 1. Filipinos cannot make joint wills whether he or
or fact leading to the foreign decree of adoption abroad
2. Joint wills made by aliens shall be considered valid 3. There is no period of prescription for the probate of
in the Philippines if valid according to their lex a will
nationalii or lex domicilii or if valid under lex loci 4. Wills proved and allowed in a foreign country
celebrationis according to the laws of each country may be
3. Joint wills made by aliens in the Philippines are allowed, filed, and recorded by the proper court in
void even if valid under their lex nationalii or lex the Philippines
domicilii in order that our public policy on joint wills 5. Although a foreign will had already been probated
may not be militated against in a foreign country, it still has to be reprobated in
4. A joint will executed by an alien and a Filipino the Philippines in accordance with our procedural
citizen abroad will be valid even as to the alien (if law it is sufficient to ask for the enforcement of
his national law or law of his domicile or lex loci the foreign judgment of the probate abroad
celebrationis allows it) but void as to the Filipino 6. The evidence necessary for the probate or
allowance of wills which have been probated
Conflicts rules on intrinsic validity of wills outside the Philippines are:
1. lex nationalii – in countries that follow the (1) The due execution of the will in
nationality theory accordance with the foreign law because
2. lex domicilii – in countries that follow the we cannot take judicial notice of foreign
domiciliary theory laws
(2) The testator had his domicile in the
What governs the intrinsic validity of wills in the foreign country where the will was
Philippines probated
The NCC applies the lex nationalii of the decedent (3) The will had been admitted to probate in
Note: in case of conflict between the nationality said country
theory and the domiciliary theory, we can treat the (4) The foreign tribunal is a probate court
case as one of “renvoi” so that we can still apply (5) The laws of the foreign country on
Philippine law even if the deceased was a citizen of procedure and allowance of wills were
another country followed
deceased’s last domicile deceased also left 2. Contracts involving real property but do not deal
properties with title or real rights over the property, the issue
being the contractual rights and liabilities of parties
6. The domiciliary administrator of the estate of a governed by the proper law of the contract (lex
deceased American citizen in the US has no power loci voluntatis or lex loci intentionis)
over and is not entitled to the possession of the 3. In contracts where real property is given as
stock certificates of shares of stock by the security by way of mortgage to secure a principle
deceased in a Philippine corporation, which contract (i.e. loan) loan is governed by the
certificates must be delivered to the ancillary proper law of the contract which the mortgage is
administrator governed by the lex situs
4. While the validity of the transfer of land must be
Caduciary rights of state in Conflict of Laws determined by the lex situs, the validity of the
There are two theories adopted by different states so that contract to transfer is determined by the proper
they may claim the properties left by a deceased who left law of the contract
no heirs and no will:
1. Some countries adopt the theory that such Rules in giving constructive situs to choses in
properties have become ownerless (bona vacantia) possession that are usually in motion
hence they should revert to the State where they VESSELS
are situated by escheat Public vessel Law of the flag
properties pass to the State as an incident of Private or commercial Law of the country or
sovereignty, not as an heir vessel place of registry
2. In the Philippines and some civil law countries – If vessel is docked at a Said port is deemed as its
the theory adopted is that the State is the last heir foreign port temporary situs
of a deceased person. Hence, the State succeeds GOODS IN TRANSIT
to the properties left by said deceased as an heir. As to liability for loss, Law of destination (Art.
destruction, or 1734, CC)
deterioration of goods
Chapter 15 in transit
PROPERTY The validity and effect Law of the place where
of seizure of goods in the goods were seized
Conflict rules on real property and personal property transit (temporary situs)
GR: lex situs/ lex re sitae law of the place where the Disposition or Proper law of the contract
property is located alienation of goods in (lex loci voluntatis or lex
transit loci intentionis)
Old rule on law on personal property/movables -
Mobilia sequuntur personam Rules in giving constructive situs to intangible
Personal effects or belongings of owner carried with personal properties or choses in action
him wherever he went. CREDITS OR DEBTS
Given artificial status since did not have fixed status Involuntary transfer of The situs of the place
– personal law of the owner assignment of a debt where the debtor may be
(garnishment) served (usually his
Philippine rule on personal properties domicile)
Art. 15 of the CC real property as well as personal The proper law of the
property is subject to the law of the country where it is contract (the proper law
situated of the original transaction
out of which the chose in
Matters governed by lex situs with respect to real action or credit arose)
property
1. Extrinsic validity Other theories:
2. Intrinsic validity 1. The law of the
3. Capacity of contracting parties Voluntary assignment place where the
4. Interpretation of documents or transfer of credit assignment is
5. Effects of ownership executed
6. Co-ownership 2. The law of the
7. Accession place where
8. Usufruct performance or
9. Lease payment is
10. Easement normally
11. Quieting of title expected
12. Registration 3. The national law
13. Prescription of the parties
14. Police power Situs of a debt for Domicile of creditor
15. Eminent domain taxation purposes
16. Taxation Administering debts Situs is the place where
the assets of the debtor
Exceptions to the rule on lex situs with respect to real are situated
properties NEGOTIABLE INSTRUMENTS
1. Succession governed by national law (in The law that Law governing rights
Philippines) not lex situs
interests of the public as a Note: In the Philippines, we follow as a GENERAL RULE the
whole, punishment of the territorial theory, and by way of EXCEPTION, the protective
offender, the reformation of theory
offender, or to deter others
from committing the same Cases where we follow the protective theory
act Art. 2, RPC: Except as provided in the treaties and laws of
Transitory in character – Local in character and can preferential application, the provisions of this Code shall be
tortfeasor can be made be prosecuted only in the enforced not only within the Philippine Archipelago,
liable for his wrongful act in place or states where the including its atmosphere, its interior waters and maritime
any jurisdiction where he crimes are committed zone, but also outside of its jurisdiction, against those who:
may be found 1. Should commit an offense while on a Philippine
ship or airship;
Note: The determination of whether a wrongful act is a tort 2. Should forge or counterfeit any coin or currency
or crime depends on the characterization of the act in the note of the Philippine Islands or obligations and
state where said act is committed securities issued by the Government of the
Philippine Islands;
Different theories that determine whether a state or a 3. Should be liable for acts connected with the
legal system has jurisdiction to take cognizance of introduction into these islands of the obligations
criminal cases and securities mentioned in the preceding number;
Under this theory, the state 4. While being public officers or employees, should
where the crime was commit an offense in the exercise of their
Territorial theory committed has jurisdiction functions; or
to try the case, and its penal 5. Should commit any of the crimes against national
code and the penalties security and the law of nations
described therein will apply
Jurisdiction over crimes committed on board a foreign
Subjective territorial vessel if said vessel is within territorial waters
principle English Rule French Rule
The state where the crime Emphasizes territorial Emphasizes nationality
was begun may prosecute principle theory
the same, even if it was The territory where the The State whose flag is
completed in another state crime was committed will flown by the vessel has
have jurisdiction EXCEPT: jurisdiction EXCEPT
Objective territorial 1. In matters relating if the crime affects the
principle to internal order peace, order, security, and
The state can prosecute and disciple of the safety of the territory
crimes began abroad but vessel and
completed within its territory 2. Those which affect
The country of which the solely the ship and
criminal is a citizen or its occupants such
subject has jurisdiction to as minor or petty
Nationality or personal try him for crimes allegedly criminal offenses
theory committed by him, whether committed
inside or outside its
territory, provided it is a Note: Under Art. 27 of UNCLOS, Philippine courts do not
crime under said country’s acquire jurisdiction over crimes committed on board a
penal law vessel even if it is within our territorial waters as long as the
Protective theory Any state whose national effect of such crime does not disturb our peace and order.
interests may be This is similar to the French rule.
jeopardized has jurisdiction
over criminal offenses, even
if it is committed outside its Chapter 19
territory and even if BUSINESS ASSOCIATIONS
committed by an alien
Real or eclectic theory Any state whose penal code Corporation, defined
has been transgressed upon Sec. 2 of Corporation Code: An artificial being created by
has jurisdiction, whether the operation of law, having the right of succession and the
crime was committed inside powers, attributes, and properties expressly authorized by
or outside its own territory law or incident to its existence
Cosmopolitan or Any state where the criminal
universality theory is found or which has Foreign corporation, defined
obtained custody over him Sec. 123 of Corporation Code: One formed, organized, or
can try him, unless existing under any laws other than those of the Philippines
extradition applies and whose laws allow Filipino citizens and corporations to do
The state of which the victim business in its own country or state
Passive personality or is a victim or subject has
passive nationality theory jurisdiction to prosecute the
offense
Theories in determining the personal law or 3. On any of its officers or agents within the
governing law of a corporation Philippines (Rules of Court)
1. The theory that the personal law is the law of the
place of incorporation Status of a contract of a foreign corporation who
2. The theory of the place or center of management transacts business here without the necessary license
3. The theory of the place of exploitation Unenforceable, but the person who contracted with the
corporation may be in estoppel if he had received benefits
Note: In the Philippines, we follow the theory of the place of from contract
incorporation
Instances when a foreign corporation not doing
Domicile of a corporation business in the Philippines can sue in Philippine
Art. 51 of NCC: When the law creating or recognizing them, courts
or any other provision does not fix the domicile of judicial 1. Isolated transactions
persons, the same shall be understood to be the place 2. To protect its reputation, corporate name, and
where their legal representation is established or where goodwill
they exercise their legal functions 3. For infringement of trademark or trade name
Under Corporation Code, the place of incorporation
of a Philippine corporation is also its domicile Law that applies to multinational or transnational
As for a foreign corporation that has been granted corporations
a license to operate or to do business in the These are actual branches of big mother corporations. The
Philippines, it acquires domicile in this country by branches having incorporated in the states where they are
virtue of said license established are governed by the internal law of said states,
and their personal laws are the local laws of host states
Exceptions to the theory that the personal law or the
nationality of a corporation follows the place of its
incorporation Partnership
1. For constitutional purposes – even if a corporation A partnership exists when two or more persons bind
was incorporated in the Philippines, it cannot themselves to contribute to money, property, or industry to
exploit or develop our natural resources nor a common fund, with the intention of dividing the profits
operate public utilities unless 60% of the capital is among themselves (Art. 1767, NCC)
Filipino owned (Constitution) A partnership, like a corporation, has a juridical
2. For wartime purposes – We adopt the control test personality separate and distinct from that of each
we pierce the veil of corporate identity and go of the partners
into the nationality of the controlling stockholders
to determine whether a corporation is an enemy Personal or governing law of a partnership
corporation Law of the country where it is created
Matters that are governed by the personal law of the Domicile of a partnership
corporation Art. 51 of NCC: The place where their legal representation is
1. Requisites for the formation of the corporation established or where they exercise their principal functions
2. Required number of incorporators and the
members of the board of directors
3. The kinds of shares of stock allowed Chapter 20
4. The transfer of stocks RECOGNITION AND ENFORCEMENT OF FOREIGN
5. The issuance, amount, and legality of dividends JUDGMENTS
6. The powers and duties of the officers, stockholders,
and members
Enforcement v. recognition
Enforcement of foreign Recognition of foreign
Law that determines the validity of corporate acts and
judgment judgment
contracts
Determined by the place of incorporation AND by the law of Means that the plaintiff or Means that eh defendant or
the place of performance petitioner wants the court to respondent is presenting the
positively carry out and foreign judgment on the
May a foreign corporation sue and be sued in the make effective the foreign basis of res judicata
Philippines? judgment
Yes, if it has the necessary license to do business in the Implies an act of Involves merely a sense of
Philippines. The license is required not to forbid the foreign sovereignty justice
corporation from performing single acts but to prevent it Requires separate action or Being a matter of defense,
from acquiring a domicile for purposes of business without proceeding brought precisely recognition needs no action
taking the steps necessary to render it amenable to suit in to make foreign judgment or proceeding but implies
the local courts effective that an action or proceeding
has already been filed
Jurisdiction over foreign corporations doing business against the defendant who is
in the Philippines, how acquired invoking the foreign
By service of summons on: judgment
1. Its resident agent Enforcement cannot exist Recognition does not need
2. If no such agent, on the government official without recognition or does not require
designated by law to that effect; or enforcement